Supreme Court of WA|2002-08-14|Before: Scott J, Pullin J

Firkins v Director of Public Prosecutions [2002] WASC 203 (14 August 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : FIRKINS -v- DIRECTOR OF PUBLIC PROSECUTIONS [2002] WASC 203

MATTER : Section 14 of the Bail Act 1982

Criminal law and procedure - Bail application - Further serious offence when on bail for a serious offence - Exceptional reasons required

Bail Act 1982, Sch 1 Pt C cl 3A

1 PULLIN J: The applicant, Jon William Firkins, applies for bail in relation to a charge that on 15 May 2002 at Wanneroo he intentionally did grievous bodily harm to Jacob Roushdi Hanna, contrary to s 294(1) of the Criminal Code.

2 The alleged offence occurred when the applicant was on bail in relation to charges that on 2 September 2001 he conspired to commit an indictable offence, going armed in public, intentionally causing grievous bodily harm and robbery (the Fremantle charges). Counsel for the applicant concedes that included in these Fremantle charges were "serious offences" within the meaning of cl 3A of Pt C Sch 1 to the Bail Act 1982. As a result, cl 3A directs me to refuse to grant bail unless I am satisfied that there are exceptional reasons why the applicant should not be kept in custody and unless I am also satisfied that bail may properly be granted having regard to the provisions of cl 1 and cl 3 of Pt C Sch 1 of the Bail Act 1982, which are the provisions which govern the grant or refusal of bail in ordinary cases.

3 The terms of bail in relation to the Fremantle charges required daily reports to the Fremantle police station and not to contact witnesses. The applicant abided by those bail conditions for 10 months.

4 The applicant instructed counsel that he denied the Fremantle charges. A preliminary hearing for the Fremantle charges was set for 1 July 2002 in the Fremantle Court of Petty Sessions. That Court was then informed by the prosecutor that the matter was no longer being prosecuted because of an inability to locate at least one complainant/witness and a lack of co-operation and interest on the part of others, such that there was no public interest in prosecuting the matter. It was not suggested by the prosecutor that the course taken by the prosecution had anything to do with conduct on the part of the applicant or his alleged co-offenders. The applicant thus ceased to be a person on bail for a "serious offence" as from 1 July 2002.

5 In my view, the disposition of the Fremantle charges does not alter the requirement that I judge this application on the basis that bail should not be granted unless there are exceptional reasons why the defendant should not be kept in custody and if the applicant would otherwise be granted bail. See Williams v The Queen [2001] WASC 308 at par 13 per Scott J. That is not disputed by the applicant.

6 However, the applicant submits that the fact that the applicant is no longer facing the Fremantle charges is a fact which I may take into account when considering this bail application. I agree with the submission, but I also agree with Scott J's view in Williams v The Queen (supra) at par 13 that the disposition of the original matter cannot of itself constitute an exceptional reason for the granting of bail in relation to the subsequent serious offence.

7 In this case, the Crown resists bail, in effect, on the basis of the seriousness of the charge. Clause 1(d) of Pt C Sch 1, which deals with ordinary bail applications, provides that the grant of bail is discretionary but that the discretion shall be exercised having regard to various factors, including whether the alleged circumstances of the offence amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate. If a consideration of that factor leads me to the conclusion that bail should be refused, then the application will fail before exceptional reasons have to be considered.

8 The applicant submits that exceptional reasons can be shown in this case, they being:

(b) the likely lengthy period of detention before the present charge can be disposed of; and

9 In fact, the last item (item (c)) and, of course, the first item (item (a)) are relevant also in satisfying ordinary requirements for bail.

10 The first question I will consider, therefore, is whether the offence amounts to wrongdoing of such a serious nature as to make a grant of bail inappropriate. The parties have joined issue on this point. The applicant submits that the evidence in the Crown brief reveals a weak prosecution case. The respondent contends to the contrary.

11 I will therefore refer to the circumstances as revealed in the Crown brief. In short, the brief reveals evidence to the following effect, either directly or by inference. The applicant is a nominee for membership of the Coffin Cheaters Motorcycle Club. He is the nominee of his co-accused, Gavin Ronald Dixon, also known as "Silver". In May 2002, Dixon occupied one of three bedrooms at 11 Strang Court, Beaconsfield, which are the premises of a chapter of the Coffin Cheaters. The applicant also occupied one of the other bedrooms from time to time.

12 Dixon began a relationship with a Renee Louise Jones about five years ago. This relationship ended in September 2001. Dixon sought to renew the relationship in January 2002, but Jones refused to do so.

13 In January 2002, Jones commenced a relationship with Jacob Roushdi Hanna. About three weeks before 15 May 2002, Dixon discovered the existence of the relationship between Jones and Hanna. Some time before 15 May 2002, Jones began receiving a flood of SMS messages from Dixon's mobile phone. Some were of a harmless nature indicating he would like to renew the relationship, while others were abusive and threatening. Then about two weeks before 15 May 2002, Hanna began receiving threatening and violent messages from Dixon's mobile phone.

14 Then on 15 May 2002, Hanna arranged to meet a man called Wayne Gibbs to collect some money owing to Hanna by Gibbs. After the initial contact, Gibbs telephoned Hanna and told him to go to a park in Wanneroo where they would meet. Hanna then drove to this location in a utility arriving at about 7.00 pm. It was dark at the time. Jones was with him in the utility.

15 Hanna parked his utility next to Gibbs' vehicle, which he recognised, and then went looking for Gibbs in the dark. Jones remained seated in the utility.

16 When Hanna located Gibbs, he realised that there were other people present. He recognised Dixon. Dixon and others (Hanna thought two others) then set to with weapons, including a baseball bat and some sharp weapon, and administered a severe beating which left Hanna severely injured. Medical evidence reports that he suffered a comminuted fracture of the mid shaft of the right tibia, a fracture of the right patella, fracture of the left fibula, fracture of the left olecranon, subarachnoid haemorrhage of the right temple region, a stab wound to the occipit of the skull, two stab wounds to the left arm and one to the medial right calf. The medical evidence suggests that the injuries endangered his life at the time that they were inflicted and that his injuries were likely to cause permanent injury to health.

17 Shortly before the beating commenced, a man appeared from behind the utility in which Jones was seated. This person opened the driver's door and removed the keys and disappeared. The person was wearing a black jacket, which was of a type she had seen the applicant wear on other occasions. Jones then heard Hanna being attacked and heard his screams during the attack. She then left the utility and eventually went to a nearby house and knocked on the door. She heard someone following her. A female in the house responded to the knock on the door. When a light was turned on, Jones saw the applicant standing on the verge looking at her. As soon as she saw him, he turned and ran back in the direction of the utility. The police were called and arrived some short time later.

18 Later Hanna identified the applicant as one of his attackers from a photo board. A search at the Beaconsfield premises found a black denim jacket in the applicant's bedroom.

19 Thus the Crown case is that the applicant was an associate of Dixon; Dixon threatened and then carried out a very serious attack on Hanna in company with others; the applicant was later identified as one of Hanna's attackers by Hanna; and Jones, who knew the applicant well, saw the applicant watching her in the locality just after the attack. That amounts to a strong case which would allow a jury to convict the applicant of the offence with which he is charged.

20 If convicted, this is an extremely serious offence, which will attract a very substantial penalty in the absence of any strong points of mitigation. The section provides a maximum penalty of 20 years' imprisonment.

21 In my opinion, the alleged circumstances of this planned and violent attack on the complainant are of such a serious nature as to make a grant of bail inappropriate.

22 Although strictly unnecessary, I will also consider the applicant's submissions that there are exceptional reasons why the applicant should not be kept in custody. In so far as the applicant submits that the Crown case is a weak one, I reject the submission for the reasons set out above. I can understand that there will be cross-examination of witnesses and various objections to evidence which eliminate some of the evidence in the Crown brief, but I consider that even if some of those objections succeed, there will remain a strong Crown case against the applicant.

23 The applicant next submits that there will be a period of lengthy detention before trial. He was arrested and placed into custody on 22 May 2002. Counsel for the applicant estimates that there will be a committal hearing at Joondalup in September at the earliest. Counsel for the respondent says that a clerk from the criminal listings department in the District Court estimates that if the applicant remains in custody and is committed for trial in September 2002, then a trial of one week in the District Court would probably be listed to be disposed of in June or July 2003.

24 In Saka v The Queen [2001] WASC 92, McKechnie J said at 38-40:

"The detention of a person presumed innocent by law for a period in excess of a year must be regarded with grave concern by all right-thinking members of the community. A grant or refusal of bail involves balancing considerations as to where the interests of justice may lie in a particular case.

A ready acceptance of lengthy periods of detention prior to trial can lead to injustice, not justice.

The State, using this term in its widest sense, brings the charge against an accused person and the State, in consequence, bears the burden of providing sufficient resources to enable the trial of a person to take place with reasonable expedition. Where, as here, the State objects to the release of an applicant on bail on the ground that the administration of justice may thereby be imperilled, it is incumbent on the State to provide the resources necessary to minimise the consequent injustice of a continued detention of a person who is at law presumed innocent of the charge. Consequently, where there is a lengthy delay before trial, the State will have a heavy burden to establish that, delay notwithstanding, the interests of justice require continued detention."

25 It is evident that provision is made within the system for reducing delay where an accused person is in detention. I was informed that a person in detention is given priority over persons who are free on bail. Nevertheless, the court must continue to scrutinise the circumstances of each case to see that there is no injustice to particular accused persons. In Outman v The Queen [2001] WASC 162, Roberts-Smith J said, and I accept, that there can be a point at which delay in bringing an accused to trial can be an exceptional circumstance or reason for granting bail. I accept that it is not reasonable to reason that because other persons spend a long time in custody and that the applicant's position represents the norm, that this cannot constitute an exceptional reason for granting bail. As I have said, all this requires a close consideration of the circumstances of each case. Having said that, it must be accepted that time will have to pass before an accused person can be tried. A case cannot be tried immediately.

26 As I have said, the current estimate is that the case will be tried in June or July in 2003. If that is so, then the applicant will have remained in custody for 13 to 14 months. Taking into account the serious nature of the offence, I do not consider that a delay of 13 to 14 months is so excessive as to show that there are exceptional reasons why the applicant should not be held in custody.

27 Finally, I refer to the withdrawal of the Fremantle charges. The withdrawal of the Fremantle charges is a factor favouring the grant of bail. However, the other reasons that I have given lead me to the conclusion that bail should be refused.

Firkins v Director of Public Prosecutions [2002] WASC 203

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Judgment (36 paragraphs)

Firkins v Director of Public Prosecutions [2002] WASC 203 (14 August 2002)

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